P. v. Moore

Filed 6/1/06 P. v. Moore CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Michael A. Tynan, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Wilson Moore pled guilty to one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. The trial court sentenced appellant to a total term of three years in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress evidence made pursuant to Penal Code section 1538.5. We affirm the judgment of conviction.

Facts[1]

On January 9, 2005, Los Angeles Police Officer Robert Coats and his partner Officer Coleman, were driving in the 1500 block of West 55th Street when Officer Coats noticed appellant walking on the sidewalk. Appellant was looking back at some people at a residence and flailing his arms. A hard steady rain was falling. Appellant looked at the officers and abruptly stopped his arm gestures. Appellant continued walking until he reached a parked van. He stopped behind the van in a position where the officers could not see him.

Officer Coats was curious about appellant's behavior. He stopped the vehicle in the street and went around the front of the van. He approached appellant and asked if he could speak to him. Appellant said, "Sure." Officer Coats asked if appellant was on parole or probation.[2] Appellant replied that he was on parole. At about this time, Officer Coleman walked around the back of the van. Officer Coats asked appellant if he could search him. Appellant replied, "Sure, go ahead." Officer Coats did not touch appellant during this verbal exchange.

Officer Coats searched appellant and found a baggie containing 10 off-white objects resembling rock cocaine in appellant's jacket pocket and $1,050 in small denomination bills in appellant's pant pocket.

Appellant testified on his own behalf that the two officers approached him at the same time, Officer Coats from the front and his partner from the rear. Appellant felt that his paths to leave were blocked by the officers. Officer Coleman grabbed appellant's left wrist and began searching his left side. While Officer Coleman was searching appellant, Officer Coats asked if he could talk to appellant. Appellant agreed. Officer Coats asked if appellant was on parole and appellant said that he was. Appellant felt that he could not walk away and that he had to comply with the officer's requests. Officer Coats asked appellant if he could search appellant. Appellant agreed. He felt that he had to answer yes, in part because he was not free to leave and in part because the officers were already searching him.

Discussion

Appellant contends that police officers detained him without facts sufficient to form a reasonable suspicion that he was either committing or about to commit a crime, and that the resultant search of his person was not voluntary. He concludes that the trial court erred in denying his motion to suppress the cocaine found during that search.

The standard of review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Here, the commissioner who initially heard the motion to suppress found that consent was voluntary. Appellant renewed his motion before the trial court assigned to his case. The trial court found that there was substantial evidence to support the commissioner's ruling and that it would not be appropriate to overrule the commissioner.

The commissioner and the trial court made few, if any, express findings of fact. Appellant's account of his encounter with police differed considerably from Officer Coats's account of that encounter, however. Thus, in denying appellant's motion to suppress, both the commissioner and the trial court impliedly found Officer Coats credible.

We defer to the lower courts' findings that Officer Coats was credible. Given the facts described by Officer Coats, we find the encounter and search to be consensual and see no violation of appellant's Fourth Amendment rights.

"Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." (United States v. Dayton (2002) 536 U.S. 194, 200-201.) While most citizens will respond to a police request, "the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." (I.N.S. v. Delgado (1984) 466 U.S. 210, 216.)

In determining whether an encounter with police is a seizure amounting to a detention, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' [Citations.]" (Florida v. Bostick (1991) 501 U.S. 429, 436-437.) Circumstances which could lead a reasonable person to believe that he was not free to decline a police officer's request or to otherwise end the encounter include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. [Citations.]" (U. S. v. Mendenhall (1980) 446 U.S. 544, 554.)

Here, Officer Coats testified that he and Officer Coleman did not display weapons, and did not touch appellant until after he had consented to a search. There is no evidence that Officer Coats used commanding language or a commanding tone of voice with appellant. Officer Coats testified that he alone approached appellant initially. Officer Coleman took longer to walk from the car around the back of the van. Officer Coats estimated that Officer Coleman emerged from behind the van at about the point where Officer Coats was asking appellant about parole.

We see nothing in these circumstances which would lead a reasonable person to believe that he was not free to decline the officer's request to talk.

To the extent that appellant contends that the officers physically prevented him from leaving, we do not agree. There is nothing in Officer Coats' testimony to suggest that the sidewalk was particularly narrow, or that there was no room to walk around the officer.

If appellant's movements were somewhat limited, this limitation arose from his choice to stop behind a parked van. Physical limitations on an individual's movements, not created by police, are insufficient to turn an encounter with police into a restraint on liberty. (Florida v. Bostick, supra, 501 U.S. at p. 436 [no seizure when police movement down aisle of bus toward an individual blocked the aisle; I.N.S. v. Delgado, supra, 466 U.S. at pp. 218-219 [no seizure when federal agents waited at exits of a factory to question the workers].) Here, any limitation on appellant's freedom of movement was caused as much by the van as by the police officers' presence on the sidewalk.

The test for a seizure under such circumstances is not whether a person would feel free to leave, but whether he would feel free to terminate the encounter by refusing to answer questions. (Florida v. Bostick, supra, 501 U.S. at p. 436.) As we have discussed above, we see nothing in the encounter which would lead a reasonable person to believe that he was not free to decline Officer Coats' request to talk.

We do not agree with appellant that his situation is similar to the one before the court in People v. Roth (1990) 219 Cal.App.3d 211. In Roth, the officers ordered the defendant to come to them so that they could talk to him. Here, Officer Coats walked up to appellant and asked if he could speak with him.

Appellant also contends that his consent to the search was not freely and voluntarily given because he was unreasonably detained by the officers at the time he gave the consent. (See Florida v. Royer (1983) 460 U.S. 491, 507-508 [stating that consent obtained through the coercive effect of an illegal detention is ineffective to justify a warrantless search].) Since appellant was not detained, this claim fails.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] These facts are taken from the preliminary hearing transcript.

[2] Officer Coats asked this question because he noticed that appellant had a teardrop tattoo under his eye.